Because of the elective-share and community property provisions mentioned above, the formula often results in half of your estate going to your spouse and the other half going to your children. Such a scenario sometimes results in the sale of the family home or other assets, which can negatively affect a surviving spouse who may have counted on the bulk of your assets to maintain their standard of living. Further complications may ensue if your children are minors, as the court will appoint a representative to look after their interests.
Dying intestate may have tax consequences, too, since a properly prepared will can reduce the estate tax liability. As of , a U. To prepare a will, begin by compiling a list of your assets and debts. Be sure to include the contents of safe deposit boxes, family heirlooms, and other assets that you wish to transfer to a particular person or entity. If you wish to leave particular personal property to specific heirs, begin a list of those allocations for eventual inclusion in your will.
Besides, you can identify the recipients of specific assets in a separate document called a letter of instruction , kept with the will.
However, if you include assignments only within this letter, check that the document is legally binding where you live; some states do not recognize them. The letter of instruction can be written more informally than the will. It can also include specifics that will help your executor settle your estate, including account numbers, passwords, and even burial instructions.
Other addenda to the will, such as power of attorney , a medical directive, or a living will , can direct the court on handling matters if a person becomes physically or mentally incapacitated.
If both you and your spouse lack wills, you might be tempted to prepare a single document that covers you both. Resist the temptation. Estate planners almost universally advise against joint wills, and some states don't even recognize them. Separate wills make more sense, even if your will and that of your spouse may end up looking remarkably similar. As noted above, a joint will is not to be confused with a mutual will.
You don't necessarily need professional help to prepare a valid will. If you are comfortable taking care of the task on your own, several software programs are available to assist you, as are various DIY websites. Once you've drafted the document, it needs to be witnessed, usually by two adults of sound mind who know you well.
Any person may act as a witness to your will, but it's best to pick what's known as a disinterested witness—someone who isn't a beneficiary and has no financial or personal stake in your choices.
Some states require two or more witnesses. If a lawyer prepared the will, they shouldn't serve as one of the witnesses.
In some states, a will must also be notarized, so check the rules where you live. Even if that formality isn't required, you might consider having your witnesses complete what's known as a self-proving affidavit. Signed in the presence of a notary, the document may facilitate the probate process by reducing the likelihood witnesses will be called into court to validate their signatures and the will's authenticity.
You'll need to name a still-living person as the executor of the estate. That person, often a spouse, adult child, or another trusted friend or relative, is responsible for administering the estate. You can also name joint executors, such as your spouse or partner and your attorney.
The probate court usually supervises the executor to ensure that they carry out the wishes specified in the will. If your affairs are complicated, it might make more sense to name an attorney or someone with legal and financial expertise.
The case for engaging an attorney is strong if your estate is substantial ranging in the millions of dollars or your situation is legally complex. If so, be sure to work with someone who is familiar with your state's laws and has extensive experience with writing wills.
Your state bar association may be able to help you locate a suitable attorney. One of the most important things your will can do is empower your executor to pay your bills and deal with debt collectors.
Ensure the wording of the will allows for this and gives your executor leeway to take care of any related issues that aren't explicitly outlined in your will.
A probate court usually requires access to your original will before it can process your estate. It's crucial, then, to keep the document where it is safe and yet accessible. Avoid storing it in a bank safety deposit box or in any other location where your family may need a court order to gain access. A waterproof and fireproof safe in your house is a good alternative. Then let at least your executor know where the original will is stored, along with needed information such as the password for the safe.
Besides, it's wise to duplicate signed copies to the executor and your attorney if you have one. Close menu. Close Our Lawyers Overlay Our Ontario Lawyers When success matters, there is no substitute for the advantage that comes from experience. Search for a lawyer below:. Office: London Toronto. By Name. By Keyword or Expertise. Areas of practice: 5?
Anne M. Reinhart Partner. Full Profile. Back to LERNx. Virey v. Virey: Despite Any Agreement to the Contrary? That applies whether or not the estate is going to probate.
Probate may not be needed if the deceased had no assets or had already transferred all of his or her assets to a living trust. Also, if you are in possession of a signed will, most states legally require you to file the will with the appropriate county court if you are the executor. If you are not the executor, you are usually required to provide the will to the executor — who then takes it to the courthouse. Each state defines its own filing deadline, but it typically ranges from 30 days to three months.
Although you have to file the will within months, the available window to initiate probate is much longer — up to four years, depending on the state. If the estate is not settled and closed out, the deceased will continue to own property and incur expenses which ultimately will not get paid.
Probate begins when someone files a petition with the courts to open a probate case. If there is no will, the court will appoint an administrator. Probate hearings are then scheduled, and heirs and beneficiaries are notified. Probate hearings give interested parties the opportunity to contest the will, the executor appointment, or both.
Intestacy laws define the flow of property to surviving relatives. If there is no spouse, then the property goes to children and grandchildren. If there are no children, the assets go to parents, siblings, etc. Creditors are then notified and given a window of time, as defined by state law, to make a claim against the estate. These transfer ownership directly and without court involvement.
If assets need to be sold to pay those bills, the executor or administrator will manage those transactions. Once debts are paid, the executor petitions the court to distribute the assets, as defined by the will or by the laws of intestacy if there is no will. Someone, usually your Executor or lawyer, will inform the court of your death and submit a copy of the death certificate to start the probate process.
Your Will must be authenticated by the court to ensure it was properly signed and dated in accordance with the law. Once this is done, your Will is considered valid. In cases where a Will is present, a judge formally appoints the person you name as Executor only in very rare cases would the court overturn your choice.
The Executor then oversees the process and settles your estate. If there is no Will, the court will appoint a Personal Representative for this role. Usually this would be your next of kin. A Personal Representative acts exactly as an Executor would. Posting a bond protects Beneficiaries against potential errors an Executor or Personal Representative might make during the probate process. Bonds may be quite costly, but your estate will pay for it.
Bonds are not always necessary, as some states will waive them if your Executor or Personal Representative is also a Beneficiary of your estate.
You can also include a request to waive a bond in your Will. Trust and Will knows the probate process inside and out, and our legal experts have taken the time to ensure that you address everything you need to in one place. This is likely the biggest task most Executors or Personal Representatives will undertake.
It involves finding and informing any potential Beneficiaries and possible creditors of your passing. He or she will also need to communicate with creditors to settle your debts using money from your estate. Keep in mind that in cases where there is a Will, most, if not all, Beneficiaries will be named, so informing them is usually an easier task.
Finding creditors can be more difficult and time-consuming, regardless of whether or not a Will is present. It should make sense that both parts of this process become exponentially more difficult when there is no Will.
To determine the value of an estate, an assessment must first be completed. This will account for everything you own at the time of your passing. Sometimes, particularly in larger estates, a professional appraiser may be needed.
This person understands the process of collecting and inventorying all real estate, personal and household items to assess their value. The total combined value is then used to estimate the value of your estate.
Funeral expenses are typically paid from your estate. Once this is paid, the estate will fund the payments for medical expenses, filing and paying taxes and handling other unpaid debts you may owe at the time of your death. This step needs careful attention, because there is potential for debtors to go after Beneficiaries in the future to recoup any unpaid debts.
After all the debts have been paid, any remaining assets will be forwarded to the appropriate Beneficiaries. The probate process can be lengthy and complicated, especially during a time of grief. If this is something you don't want to go through alone, consider getting help from the experts at EZ-Probate. They offer unparalleled support and guidance to simplify the probate process.
There are ways to limit the headaches that probate often causes loved ones.
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